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Suspension from work while intoxicated. Suspension order

Suspension from work is a situation that interests both managers and employees. In this article, we will look at what exemption from work is and in what cases it is possible.

The Labor Code does not have a separate concept of "suspension from work". This situation is understood as a prohibition for a worker to carry out his work activities forcibly. The ban is imposed by the head or authorized person.

Possible reasons for suspension

The release of a worker from the performance of his work functions cannot be carried out at the request of the boss. There must always be good reasons for such an action. The manager can remove his employee from the work process for several reasons. Let's consider them in more detail:

the employee appeared at his workplace under the influence of alcohol or drugs;
the employee did not undergo mandatory training, refused to demonstrate his skills and abilities;
the employee refused to undergo a medical examination by doctors;
if the worker has contraindications for the performance of work, which is provided for by the employment contract;
if the employee temporarily ended a special right (the right to bear arms, the right to drive a car, etc.);
if removal is required by authorized persons and state bodies;
for other reasons established by law;
if there is a medical certificate for the transfer of an employee if necessary (no more than four months).

Documentation procedure

Let us consider in more detail how the release of e from the execution of the workflow occurs, and how this situation is documented.

The release of an employee from the execution of the workflow does not mean his dismissal. The dismissal of an employee can only be in the following situations:

the employee refused the transfer, despite medical indications which provide for transfer to another position;
if the reasons for which the employee was dismissed have not been eliminated;
if a disciplinary measure in the form of dismissal is applied to the worker.

For how long can they not be allowed to work

The employee is released from labor process until all the circumstances that served as the basis for this have been eliminated. If the manager has identified the reasons why he is obliged to remove the employee not immediately, then release must occur as soon as the manager becomes aware of these circumstances.

In some stipulated cases, exemption from the workflow may be extended. Such cases include situations when a worker, for health reasons, needs to be transferred to another vacancy. If the manager does not have other vacancies that he can offer to the employee, there is a dismissal. But the manager may, at his discretion and the consent of the employee in writing, not dismiss him. The manager may suspend the employee for a period to be determined by both parties. This is an isolated case where a suspension can last more than four months.

If the worker did not pass the mandatory medical examination against his will, then this period of release is included in the length of service, which gives the right to annual rest in the form of leave.

Absence through no fault of the employee, illegal suspension or dismissal is also equated to seniority. Suspension for forced reasons is not included in the seniority.

How is the period paid?

Every employee who has experienced a suspension from work activities interested in wages. According to general order, established by law, payment during the suspension of the worker does not occur. But there are some exceptions.

For example, if an employee has not been trained and has not shown his knowledge, and has not passed a medical examination against his will, he is paid cash for the entire period in which he was suspended. Given time considered downtime and paid as downtime.

The payment of funds does not always lie with the head. There are cases when funds are paid from other sources. For example, if a worker is suspended due to being under investigation, is in the status of a suspect, then is entitled to a monthly allowance. This benefit pays federal budget or participants in a lawsuit.

The main mistakes of the employer

Due to the fact that suspension from work occurs in enterprises quite rarely, managers make mistakes. Let's take a closer look at the most common mistakes.

Suspension controversy
Employees who file a lawsuit with their managers most often want to resolve the following issues:

declare the suspension unlawful;
collect payment of funds for the time when the employee was illegally suspended;
collect money for forced absenteeism;
return to work;
collect money for downtime through no fault of your own;
change the marks in the work book that relate to dismissal;
dismiss and issue work book an employee;
recover compensation payment and payment of moral damages.

According to the statistics studied, disputes that are associated with exemption from the work process are rarely associated with illegal suspension. Most often, errors occur in such cases when the manager and his personnel specialists are illiterate and incompetent in matters of dismissal of workers.

There is only one way to correct errors. It is necessary to cancel the order, recognize it as illegal and issue a compensation payment to the employee and wages. If this does not happen, the employee may apply to the court. According to judicial practice, it is more likely that the judge will take the side of the worker.

Suspension at the request of authorized persons

The manager must release the employee from the performance of his labor function, if this is required by the authorized bodies. Organs include:

labor inspection;
officials from law enforcement;
officials from the judiciary;
prosecutors officials.

Authorized persons must issue a suspension document and submit it to the manager. The head must carefully read the document, check the correctness of its execution, study the decision of the body. If the document contains provisions that the release must be carried out on the recommendation, and not without fail, then the manager can decide for himself.

It can be noted that the release of an employee from the performance of labor functions at the request of officials is a rare case.

Labor disputes that are associated with exemption from work activities require increased attention and preparation. Cases in which the parties come to an amicable agreement happen quite often.

Suspension of an employee - a situation of a legal nature, which is defined by labor legislation. For what reasons a worker can be dismissed, and what documents should be drawn up, we examined in detail in this article. Exemption from labor activity- this is a procedure that requires the head to identify the circumstances, draw up all the relevant documents, as well as the actual release.

The release from work is temporary, until the circumstances that caused this action are eliminated. It does not in any way affect labor contract. But there are some cases when an employee can be released from work, followed by a disciplinary sanction in the form of dismissal.

Worker from work activity can remove not only the authorities, but also the authorized bodies. These bodies include law enforcement agencies, officials. Suspension occurs until the causes are eliminated. After the causes are eliminated, the employee can be re-admitted to the labor process, about which an order is created.

If the employee does not agree with the suspension, and considers it illegal, he can always discuss this issue with his supervisor. If the authorities do not go to the meeting, and will adhere to their position, the employee may apply for the protection of their rights to the judiciary. If the dismissal is indeed illegal, the judicial authority will issue a decision obliging the manager to correct the violations and pay compensation to the worker.

If the dismissal is made in accordance with labor standards, the judge will side with the leadership. But in any case, if an employee doubts the legitimacy of the employer's actions, you should not turn a blind eye to this. You need to defend your legal position. Only in this case, the head will be responsible, and there will be no desire to violate the law in the future.

In this video, the legislation on the removal of employees from performing work duties is analyzed in detail.

If an employee is at the workplace in a state of alcoholic, narcotic or other toxic intoxication, then, according to Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove him from the performance of labor duties.

The document initiating the procedure for suspension from work for alcohol intoxication may be a memorandum drawn up by the immediate supervisor of the employee or any other employee. The memorandum must reflect the signs on which the conclusion was made about the drunken state of the employee.

To confirm the fact of intoxication, it is recommended to create a commission, the result of which will be an act. The act indicates: the date, exact time and place of compilation, the names and positions of all members of the commission, as well as the name and position of the employee who appeared at work in a state of intoxication, and signs confirming the fact of intoxication.

The procedure for the removal from work of an employee in a state of intoxication

To confirm the fact of intoxication, the employer has the right to send the employee for a medical examination. However, honey examination of an employee for being in a state of intoxication can be carried out only with the consent of the employee (Article 20 of the Federal Law of November 21, 2011 N 323-ФЗ “On the Basics of Protecting the Health of Citizens in Russian Federation»).

A medical examination for intoxication can only be carried out by a medical institution that has the appropriate license, specially trained doctors and certified equipment (Decree of the Government of the Russian Federation of 16.04.2012 N 291).

In order to be suspended from work due to alcohol intoxication, it is necessary that the medical report indicates that there is alcohol in the employee's blood. If the employee has consumed alcohol, but there are no signs of intoxication, the suspension from work and subsequent dismissal will be declared illegal. The form of the issued document was approved by the Order of the Ministry of Internal Affairs of the Russian Federation dated 04.08.2008 N 676.

Suspension of a drunk employee from work

After receiving a medical opinion or an act based on the results of the work of the commission, an order is issued on suspension from work. The period of suspension from work is set by the employer independently based on the data of the medical report or act.

When suspended from work and admitted to work, no entry is made in the employee's work book and the employee's personal card. The period of suspension from work is not included in the length of service required to grant leave (part 2 of article 121 of the Labor Code of the Russian Federation).

Suspension from work due to alcohol intoxication of an employee

Suspension of an employee who appeared at work in a state of alcoholic, narcotic or toxic intoxication

Procedure

The memorandum is drawn up by the immediate supervisor of the employee who appeared at work in a state of intoxication in the name of the head of the organization. Reports can also be drawn up by employees about what they saw at the specified time this employee drunk at work.

Deadline: the day of the appearance at work in a state of intoxication.

V explanatory note the employee must explain the fact of being at the workplace in a state of intoxication or refute this fact. The employee's explanations are taken into account in the future when the commission decides to apply a disciplinary sanction to the employee.

Send an employee for a medical examination

An employee can be sent for a medical examination to a narcological dispensary or to any medical institution where there is a psychiatrist-narcologist or a doctor of another specialty who has undergone special training. If the employer sends the employee, then he pays for the medical examination. In the future, if the employee shows signs of intoxication, the employer may recover the cost from the employee as damage caused to the employer.

Deadline: the day of the appearance at work in a state of intoxication.

Obtain the results of a medical examination of an employee for intoxication from a medical institution

The doctor issues one copy of the act into the hands of the person who delivered the employee to the medical facility or, in the absence of an accompanying person, sends it to the employer by mail.

Result: certificate of examination for alcohol intoxication received from a medical institution.

Familiarize the employee with the dismissal order

The order should be printed and familiarized with the employee against signature - at the bottom of the order, the employee must sign and put the date of familiarization.

In the time sheet, the period of suspension is marked by putting down an alphabetic (NB) or digital (35) code.

Suspension from work is a temporary exclusion of an employee from performing his main labor functions on the grounds specified in Art. 76 of the Labor Code of the Russian Federation.

Preventing an employee from work is not a right, but an obligation of the employer. But before that, he must issue a suspension in accordance with all the rules.

First of all, it is necessary to document the basis provided for in Art. 76 of the Labor Code of the Russian Federation. This is not yet an exhaustive list. An employee can also be suspended on other grounds, which are specified in federal laws and regulations.

For example, if an employee's activities are associated with viruses and diseases, then without preventive vaccinations, he does not have the right to start work.

Suspension is formalized by an order, which is issued on the basis of documents confirming that the employee cannot start work. For example, on the basis of a medical examination of alcohol intoxication.

An order to suspend an employee from work is drawn up on the letterhead of the enterprise and has a serial number. It must contain the following information:

full name and position of the dismissed employee;
If necessary, you can specify the name structural unit where this employee works;
the period for which the employer does not allow the employee to perform his immediate duties. Suspension is issued for a period until the reasons for non-admission are eliminated. If it is necessary to issue a suspension for up to 4 months, then the employee must be offered a transfer to another position;
methods of payment for the period when the employee is not allowed to work. The employer has the right not to pay this period, but can pay as simple - in the amount of 2/3 of tariff rate employee;
full name and position of the person who is charged by the employer with the duty to control the execution and compliance with the order;
grounds on which the employer dismissed the employee. You need the document itself, its number and date, as well as the name of the institution that issued this document. If the basis for non-admission is several documents, then it is necessary to list them all;
position of leader, personal signature and its decryption;
position, personal signature and its transcript of the employee who is suspended from work. The employee must put his signature as a sign that he is familiar with the order. This is done in case the employee decides to challenge the decision of the employer in court.

If the employee refuses to sign the order, this is not grounds for canceling the employer's decision not to allow this employee to work.

In case of refusal, the employer must draw up an act, which must be signed by two more witnesses and the employer himself (or an authorized person).

The order is stamped by the employer. After that, he registers in statutory order in the register of orders under its serial number.

Suspension from work due to alcohol intoxication

Suspension from work is a temporary measure that the employer is obliged to apply if the grounds specified in Art. 76 of the Labor Code of the Russian Federation. One such reason is alcohol intoxication.

In order to prevent such an employee from working, the employer must record the fact that he appeared at the workplace in a state of intoxication. This can only be done medical worker in a medical institution that has a license to conduct an examination.
According to Guidelines according to a medical examination, a medical worker can establish 5 states of alcohol intoxication of an employee. The punishment depends on how accurately the doctor determines the patient's condition.

Based on the medical report, the employer must draw up an order to remove such an employee from his duties.

The order is drawn up on the letterhead of the enterprise and has its own serial number. The order contains the following information:

full name and position of the employee to be removed;
if there is a need, then the structural unit must also be indicated;
the period for which the employer does not allow the employee to work. As a rule, such a period is the period that is necessary to eliminate the grounds for non-admission. In this case, a period is needed for the employee to sober up;
the document on the basis of which the order is drawn up. You must specify the number and date of the document, as well as medical institution which issued this document;
full name and position of the person who is entrusted with the supervisory function for the execution and observance of the order;
position, personal signature of the employer or his authorized person with a transcript;
position, personal signature and transcript of the signature of the employee who is suspended from work;
Date of preparation.

The employee must sign the order. This indicates that he is familiar with it. This is done in case the employee decides to challenge the employer's decision in court.
If the employee does not want to sign the order, then the employer must draw up an act, which, in addition to him (or an authorized person), must be signed by 3 more witnesses.

Suspension from work due to alcohol intoxication may be a prerequisite for the dismissal of such an employee.

Download

You can download a sample order to suspend an employee from work in .doc format

The employee was asked to go to work on the day off, he agreed, the personnel department issued an order to involve him in work on the day off. the employee came to work on a day off in a state of intoxication and was not allowed to work. Human Resources found out about it on Monday. how to retroactively issue a suspension from work? thanks in advance.

Answer

Answer to the question:

specific order documentation the removal of an employee from work is not established by law. You can prescribe this procedure in the Internal Labor Regulations.

In practice, if sufficient to remove the employee from work is found, this fact is recorded, for example, in a memorandum or memo from the immediate supervisor. Further, the employee is recommended to be sent for a medical examination to a specialized organization that has the appropriate license. Based on the results of the examination, a medical certificate or act will be issued, which is established.

➤ Read also about retroactive hiring

If the employee refuses to undergo an examination, the refusal must be recorded in an act. In this case, the fact of intoxication can be confirmed by other evidence, for example, compiled without the participation of physicians. Moreover, the act must be drawn up directly on the day the employee is found at work in a state of intoxication, otherwise it will be impossible to prove this fact. The act is signed by at least two people.

Further, on the basis of supporting documents, an order is issued to suspend the employee from work, indicating the reasons and period for suspension. The order should reflect the procedure for the period of suspension: for example, the period of suspension from work due to alcohol intoxication is not paid.

If an employee is found at the workplace in a state of intoxication, the head of the department in which the employee works must be addressed to the head of the organization. The note should reflect the signs by which the employee's condition is regarded as intoxication (for example, incoherent speech, impaired coordination of movements, the characteristic smell of alcohol, etc.).

Signs of intoxication are listed in approved.

Further, the employee is recommended to be sent for a medical examination to a specialized organization that has the appropriate license. Based on the results of the examination, a medical certificate or act will be issued, which is established.

Payment for services when contacting medical organization for the examination, as a rule, is carried out at the expense of the employer. However, if the fact of intoxication is confirmed, these amounts can subsequently be recovered from the employee as direct damage to the employer ().

However, the employee has the right to refuse to undergo an examination (). An employee's refusal to be examined must be recorded in an act.

In case of refusal to undergo a medical examination, the fact of intoxication can be confirmed by other evidence, for example, drawn up without the participation of doctors. The legitimacy of this approach is explained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 and confirmed judicial practice(see, for example,). Moreover, the act must be drawn up directly on the day the employee is found at work in a state of intoxication, otherwise it will be impossible to prove this fact. The act is signed by at least two people.

It is also necessary to offer an employee who appeared in a state of intoxication to submit his explanations in writing, since incoherent wording, illegible handwriting, slurred thoughts can subsequently be considered as additional confirmation of being in a state of intoxication.

After the execution of all documents confirming the intoxication of the employee, the procedure for removing the employee from work takes place according to.

Suspension from work in connection with the appearance in a state of intoxication is issued only for one day. If the next day the worker reappears in a state of intoxication, then it will be necessary to carry out the entire suspension procedure again.

The appearance of an employee at work in a state of intoxication is.

2. Answer: How to issue an employee's suspension from work

Irina Zhuravleva lawyer, consultant personnel records and labor disputes, author of the advanced training course "School of Personnel Officer"

Suspension is carried out by the employer unilaterally, without obtaining the written or other consent of the employee, without prior warning of the forthcoming suspension from work.

The specific procedure for documenting the removal of an employee from work is not established by law. In practice, employers act as follows.

The order must indicate the reasons for the removal of the employee from work and indicate the period of suspension. As a rule, the wording “until the circumstances that were the basis for dismissal from work” are eliminated. At the same time, if at the time of drawing up the order it is possible to reliably determine the period of suspension, then a specific date can be indicated in the order.

In addition, the order should reflect the procedure for the period of suspension.

The order should also draw up the line "Basis", listing all the documents confirming the legality and validity of the issuance of the order.

It is necessary to familiarize the employee with the order on suspension from work against signature. In case of refusal to sign the order, an appropriate act is drawn up or a corresponding entry is made directly on the order itself.

Record of suspension from work in . By general rules it is not required to make this entry in . However, if necessary (for example, to ensure internal accounting) this information it can still be reflected in a personal card, for example, in the "Additional Information" section. Such information will be useful, in particular, when necessary to grant leave.

During the period of suspension of an employee from work, an alpha or numeric code is indicated depending on the payment procedure for this period (suspension from work with payment - BUT (or 34), without payroll - NB (or 35)).

It will be useful for you to know about Suspension of an employee from work in the material at the link.

The organization can establish a specific procedure for processing documents in its local regulations. In addition, the grounds for removal must also be taken into account, which may also affect the documentation process.

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Drawing up an order for suspension from work occurs in cases where the management of the enterprise, for some reason, has the need to prevent one of the subordinates from performing official duties.

FILES

Most common reasons for suspension

To begin with, it should be said that suspension from work is not a right, but an obligation of the employer.

It happens due to certain circumstances. The most common reasons include:

the employee does not have a medical book with the necessary marks on the state of health;
medical contraindications;
lack of information about familiarization with the internal rules of labor protection at the enterprise;
the arrival of an employee at work in an inadequate state (drug, toxic, or alcohol intoxication).

There are other reasons for removal, but they are less common and are more of a point character.

The procedure for suspension from work

You can’t just take and remove an employee from work. To do this, you need to follow a certain procedure:

First of all, you should draw up a documentary basis in writing (for example, write an act), which must comply with Labor Code RF (Article 76), as well as others federal laws and local company regulations.
Then, on this basis, a separate order is drawn up, which specifies the reason for suspension from work, as well as the position and full name of the employee.

Only after that a person can be removed from the performance of his official functions.

It should be noted that the ban on work is always temporary, so the period of suspension must also be included in the order form.

Who makes the order

Directly, the function of drawing up a removal order can be included in the duties of any employee of the organization who has certain knowledge of the Civil and Labor legislation of the Russian Federation, as well as experience in writing such orders. As a rule, this is:

personnel officer;
specialist of the legal department;
Secretary;
company director.

At the same time, it is always worth remembering that no matter who specifically writes the order, it is issued on behalf of the director of the enterprise and must be certified by him.

How to back up an order

All orders issued in an organization must be based on something and justified by something. Most often, in this case, the basis is either from the head of the structural unit in which the dismissed employee works, as well as an act that indicates a violation that resulted in suspension from work. As a justification, it is necessary to clearly formulate the reason, which is usually entered in the document after the words "In connection with ...".

If you form an unjustified order and do not make any references to the norms of legislation or internal documents of the company in it, in the case of inspections by regulatory organizations (for example, labor inspectorate), it will be very easy to refute, and even more - for the lack of grounds for writing an order, the company's management can be held administratively liable.

Formation of a suspension order

To date, there is no standard unified sample of a suspension order, so company representatives can write it in any form or according to the internal template of the organization. It is only important that the document in its structure complies with the norms of office work, and in terms of text and content - the rules of the Russian language.

It is also necessary that the order includes a list of certain information:

the name of the company in which it is published;
its number according to the internal document flow of the company;
date and place of compilation;
position and last name, first name and patronymic of the employee who has been suspended from work;
the reason for creating the order (in other words, to indicate the essence of the claim against the employee);
date or period of suspension from work;
references to the basis and justification (the act in which the violation is recorded, the report or memo from the head of the department in which the dismissed employee works).

After that, the head of the enterprise introduces into the order the employees responsible for its execution (usually this is the head of a structural unit or a personnel officer, but if these positions are not available in the organization, the director can take on this function).

Rules for issuing an order

The finished order must be signed by the director of the enterprise or a person authorized to act on his behalf (the use of facsimile autographs, i.e. printed in any way is not allowed). Also, the order must be signed by the persons responsible for its implementation, and the employee who is suspended from work.

If the latter refuses to put his signature under the order of the director, this does not become a basis for canceling the order. In such cases, another document is drawn up - an act of refusal to sign the order (two witnesses should be involved for this).

There is no strict need to certify an order with a seal or stamp now, since since 2016 organizations have been exempted from the obligation to use stamp products in their work (unless this rule is included in their local acts).

After drafting the document

The order is usually drawn up in a single copy, but if necessary, additional copies can be made.

After drawing up and endorsement in the prescribed manner, it should be registered in the internal register.

Then, during the period of validity, it must lie along with other orders of the director in a place closed to access by unauthorized persons, and after its relevance expires, it can be sent to the archive of the enterprise, where it must be stored for at least five years.